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On 17 March 2018, the New York Times and the Observer of London broke the news that the SCL Group and Cambridge Analytica used the data of 50 million Facebook users – without their knowledge or permission – to help the Trump campaign to influence the US elections. (The original New York Times article can be found here).

In Britain, Cambridge Analytica is facing investigations by Parliament and Government Regulators into allegations that it performed illegal work on the “Brexit” campaign. Closer to home, reports have surfaced that the companies played a role in President Uhuru Kenyatta’s 2013 and 2017 campaigns for the Kenyan Presidency. The Managing Director of the company has claimed that not only did they conduct a survey, but “rebranded the entire party twice, written their manifesto” and “then we’d write all the speeches and we’d stage the whole thing – so just about every element of the campaign”.

There has been a huge uproar in the US and UK with Mark Zuckerberg being called before the US Congress and UK parliamentary panel to answer questions on the debacle. Zuckerberg is set to appear before Congress today and tomorrow, but has declined the invitation to appear before the UK parliament.

The data of 50 million users which is at the heart of the congressional inquiry was collected over a number of years by Aleksandr Kogan, an academic based at the University of Cambridge, who developed an app which not only gathered data from the people paid to download it (people were paid to download the app which was advertised on a website for doing odd jobs online), but from all of those people’s friends as well. Reportedly, of the 50 million Facebook users whose data was collected, only 270 000 of those users had consented to having their data harvested. All that the researcher divulged to Facebook and the users was that he was collecting information for academic purposes.

It is now reported that approximately 60 000 South Africans’ data may have been breached after as few as 330 people downloaded the app designed by Aleksandr Kogan.

Facebook’s lax privacy policies have been called into question before. The American Civil Liberties Union (ACLU) has for years been calling on Facebook to clean up their act and implement more stringent data protection. (See the full ACLU post here)

In 2009, the ACLU warned against the lack of privacy when you took online quizzes:

‘Even if your Facebook profile is “private,” when you take a quiz, an unknown quiz developer could be accessing almost everything in your profile: your religion, sexual orientation, political affiliation, pictures, and groups. Facebook quizzes also have access to most of the info on your friends’ profiles. This means that if your friend takes a quiz, they could be giving away your personal information too.’

In 2016, the ACLU in California also discovered, through a public records investigation, that social media surveillance companies like Geofeedia were improperly exploiting Facebook developer data access to monitor Black Lives Matter and other activists. They again sounded the alarm to Facebook, publicly calling on the company to strengthen its data privacy policies and “institute human and technical auditing mechanisms” to both prevent violations and take swift action against developers for misuse.

The ACLU reports that Facebook has modified its policies and practices over the years to address some of these issues. Its current app platform prevents apps from accessing formerly-available data about a user’s friends. And, after months of advocacy by the ACLU along with the Center for Media Justice and Color of Change, Facebook prohibited use of its data for surveillance tools.

Facebook’s response to the Cambridge Analytica debacle demonstrates that the company still has significant issues to resolve. The ACLU points out that Facebook knew about the Cambridge Analytica data misuse back in December 2015 but did not block the company’s access to Facebook until hours before the current story broke. And its initial public response was to hide behind the assertion that “everyone involved gave their consent,” with executives conspicuously silent about the issue. It wasn’t until Wednesday, 21 March 2018, that Mark Zuckerberg surfaced and acknowledged that this was a, “breach of trust between Facebook and the people who share their data with us and expect us to protect it,” and promised to take steps to repair that trust and prevent incidents like this from occurring again.

The question remains: how will Facebook improve its privacy and data retention practices? With the EU General Data Regulation coming into force in May 2018, Facebook will be forced to comply with privacy principles which run contrary to its established business model. These include: having to request Facebook users’ consent in clear and unambiguous language to process their private data, mandatory notification of users when a data breach occurs, and providing users the ‘right to be forgotten’ which would empower users to demand that Facebook delete their data, stop any further dissemination and require third parties associated with Facebook stop any further processing of the data.

In South Africa, the Protection of Personal Information Act (POPI), upon coming fully into operation, will apply to the processing of data of the type used by Cambridge Analytica. Facebook and Cambridge Analytica would constitute the ‘responsible party’ and ‘operator’ respectively, placing certain duties on Facebook and Cambridge Analytica. South African Facebook users would have recourse with the Information Regulator or courts were a similar breach of data to occur after the commencement of the Act. Their claim would lie in the fact that Facebook would have breached the conditions for lawful processing of data laid out in Chapter 3 of POPI. These conditions include requirements similar to those in the EUGDR, such as: further processing limitation, which requires Facebook to only allow further processing of personal information which is reasonably related to the initial reason the data was collected for; security safeguards, meaning that Facebook would have to take reasonable and appropriate measures to ensure that the integrity and confidentiality of the data is ensured; and data subject participation, which gives the user the right to request confirmation that Facebook has their personal information, and request that this information be corrected or deleted.

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

During the course of today, 20 October 2016, the European Court of Human Rights will receive submissions drafted by the Legal Resources Centre, acting as an intervening third party in the case of KOSA v Hungary.

In this case, Amanda Kosa, the applicant who is part of a minority group, is arguing that the Hungarian government has breached her right under the European Convention on Human Rights, to an education free from discrimination. The bus service to her previous school was cancelled and children from her community are now attending a school closer to their settlement, forcing the children to be separated from their fellow Hungarian learners.

The European Court will be asking three questions:

Have Hungarian domestic remedies been exhausted?

Has there been a breach of the applicant’s right to an education free from discrimination?

Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?

In our submissions, we argue that –

Our High Court has, drawing on international law (including article 13 of the International Covenant on Economic, Social and Cultural Rights, and General Comment 13 of the Committee on Economic, Social and Cultural Rights) held that in appropriate cases, upholding the right to basic education in section 29 of the Constitution requires the provision State-funded transportation for learners.

The evidence of the importance of this finding is stark in the Eastern Cape, where much of our work takes place. The need for learners to walk very long distances to school often leads to students missing days of school, dropping out of school, as well as being victims of criminal acts during their daily commute on foot.

It is our submission that the provision of State-funded scholar transportation, in appropriate cases, is a necessary aspect of the fulfilment of any right to education.

This is especially true when those requiring the fulfilment of their right to education have faced historical unfair discrimination, such as minority groups, and a denial of access to education would perpetuate this discrimination.

Photo: LRC attorney Mandira Subramony with the Eastern Cape learners in their long walk to access education facilities in the province

The LRC have been granted leave to intervene at the European Court of Human Rights, in a matter against the government of Hungary. The case of Amanda Kosa v Hungary challenges a possible infringement of the right to education in the European Convention on Human Rights.

What’s the case about?

Huszar telep is a settlement in the Nyiregyhaza region of Hungary. It is made of up mostly Romani people. The Roma or Romani people are a nomadic ethic minority group, living in a number of countries in Europe – including Bulgaria, Slovakia, Romania, Serbia and Hungary. They are one of the largest ethnic minorities on the continent.

In 2011, the Greek Catholic Church in Nyiregyhaza opened a segregated school, near Huszar telep, serving only Roma children from the settlement. Prior to this, the Roma children had been attending an integrated school, 2.3 kilometres away from the settlement. The mayor and town council of Nyiregyhaza had been providing a bus to take the children to the integrated school. At the same time as the establishment of the Greek Catholic school, the children’s bus was stopped by the town council.

Amanda Kosa, the applicant before the ECtHR, is one of the pupils attending the segregated school.

The Chance for Children Foundation (a foundation representing rights of children from disadvantaged backgrounds in Hungary) took the case to court in 2011, suing the Greek Catholic Church for illegal segregation.

The case made its way through the Hungarian legal system, ending at the Kuria – the highest court in Hungary. The Kuria ruled in favour of the Greek Catholic Church, on the basis that the free choice of religion at school supersedes the prohibition of segregation. However, those in favour of integrated schooling do not believe that the school was being chosen because it was being run by Greek Catholics, but rather because it was close to the settlement and parents could not afford the necessary city bus transport after the subsidised bus had been cancelled.

The European Court of Human Rights will be asking three questions:

Have Hungarian domestic remedies been exhausted?

Has there been a breach of the applicant’s right to an education free from discrimination?

Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?

So why are we getting involved?

Question (3) is where the LRC’s input will be important.

In 2015, the LRC won an important case in the Grahamstown High Court. See Tripartite Steering Committee and another v Minister of Basic Education and others Case no 1830/2015 (26 June 2015). In it, Plasket J, finding in our favour, stated unequivocally that, “where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its obligations in terms of s 7(2) of the Constitution, to promote and fulfil the right to basic education” (paragraph 19).

In light of our work on scholar transport in the Eastern Cape, we can play an important part in demonstrating to the ECtHR how and why the provision of transport to scholars impacts on the fulfilment of the right to education.

The ECtHR is not able to overturn the decision of the Kuria. It will decide only whether there has been a violation of the Convention or the Protocols, and may award “just satisfaction” (i.e reparations) if the internal law of Hungary has allowed only partial reparation to be made.[1]

On the 6 April 2016, the Legal Resources Centre (LRC) held a side event at the 58th session of the African Commission on Human and Peoples’ Rights in Banjul, The Gambia. The side event discussed the United Nations proposed treaty on transnational corporations and other business enterprises with respect to human rights.

The side event attracted participants from various organisations across Africa. Our panel consisted of three staff members of the LRC and a member of the African Commission’s Working Group on Extractive Industries, Clement Voule. Unfortunately, Nomonde Nyembe from the Centre for Applied Legal Studies was unable to join us as a panellist due to an unanticipated injury.

LRC researcher, Mabatho Molokomme, facilitated the session. She gave a brief background on the Human Rights Council resolution and what it envisages for the treaty. This was followed by a summary of the first open-ended intergovernmental working group (IGWG) session that took place in Geneva, Switzerland in July 2015.

The 58th session of the Africa Commission on Human and People’s Rights

Drafting the binding treaty

LRC attorney, Sayi Nindi, spoke about community participation and the drafting process of the binding treaty. Some of the key points she raised are as follows:

The drafting process of the binding treaty is at its preliminary stage and no one knows how the treaty will look like.

The following still need to be determined, amongst other questions: what rights will be covered by the treaty; what companies the treaty should apply to; if the treaty should define in greater detail the content of states’ duties to protect human rights and ensuring access to justice for the affected people.

There are different views on whether corporations should be subjected to international law. Positivists say corporations should not be subjects of international law because no international law instrument recognises them as such. Other flexible interpretations say that corporations may have limited international legal personality. Pragmatists are of the view that the issue of whether corporations are subject to international law (and what legal responsibility can be imposed on them) is irrelevant as clearly corporations have both rights and responsibilities.

The development of this treaty has to be people- and community-centred. Local communities must be empowered to lead and participate in this process. They must bring their experiences to the table.

Communities have to bear the brunt of the so-called “development” that allegedly comes with transnational corporations.

There’s a clear gap in the international human rights law framework in its failure to address human right abuses by transnational corporations. They can now participate in debates and resolutions. This is the perfect opportunity to state the importance of Free, Prior and Informed Consent (FPIC)* and insist on it to be a requirement for developmental projects.

African civil societies should lobby their governments to participate and contribute at the IGWG sessions.

Cases that the LRC are litigating were used to illustrate how the treaty would be beneficial in situations where individuals or communities are victims of human right violations by multinational corporations. There are many examples on the continent where victims of human rights violations perpetuated by multinational corporations are left with no recourse if they solely relied on their domestic laws, which may not be as effective as an international instrument such as the binding treaty.

The LRC have been working with the South African government and we were encouraged that other civil society organisations do the same. The participants were informed of ways in which they can engage with their governments in order to promote the treaty movement at the UN level. A draft letter to be sent to governments was offered to those in attendance.

Right to Development

LRC attorney, Wilmien Wicomb, spoke on Right to Development as enshrined in the African Charter on Human and Peoples’ Rights and Free, Prior and Informed Consent. She raised the following key points:

The question is sometimes raised why we need yet another treaty with so many existing international and soft law instruments. It was noted that the treaty represents an acknowledgement that transnational corporations have become powerful enough as players in international relations and domestically to perform governmental functions; such as delivery of services and contributing to policy and development decisions. As such, the treaty represents a radical departure from existing international human rights law.

If that is the case, a key question that continues to be debated is whether transnational corporations should also be the bearer of international human right’s duties?

To answer this and other difficult questions, it is important to look at the current context. The current resource wave is targeting mainly rural communities – the poorest and furthest away from basic services – in South-South countries: in part because of their insecure and cheap tenure.

She noted that Africa can bring something different to the transnational corporation discussion. The African context has important differences: a different legal context (from, for example, Latin America with International Labour Organisation 169, FPIC entrenched in domestic law); a different history (in particular to indigenous peoples); old and new mining sectors.

From our unique legal context, Africa can contribute the African Charter and its Right to Development as a procedural and a substantive right; real choice with an emphasis on outcome and on community-driven development.

Furthermore, African customary law requires principle of consent, of local decision making, of local living law. Increased recognition of customary law must be utilised to counter common law and business-heavy legal frameworks.

There was a general discussion on why the treaty is not being favoured across the board, given that everyone is aware of human rights violations happening. There was general consensus in the room that the United Nations Guiding Principles on Business and Human Rights (UNGP) are preferred by the home states of the transnational corporations because of their voluntary nature. Much work and negotiation will be required before the treaty can reflect all we hope it will contain.

There was acknowledgement of the high standard of rights as set out in the African Charter. No one will be campaigning for anything less than that standard.

Mabatho Molokomme, Sayi Nindi, & Wilmien Wicomb

African participation

Clement Voule spoke on civil society advocacy and mobilisation. He emphasised that there has been marginal participation from Africa in the process thus far. He encouraged people to be a bit more proactive in their involvement in the upcoming IGWG session in October 2016. He noted that the content and its negotiations will take a long time. There may not even be a treaty in the end but this should not deter people from joining the process. He also stated that the treaty conversation should not be kept separate from the UNGP conversation. The treaty must be viewed as the next step in the process and not a replacement of the other. States reaching common ground on the UNGP may be a window of opportunity and a better space to discuss the treaty.

Outcomes

The side event induced a worthwhile conversation and we invite the proposals that were put forward. A participant who works for the African Commission proposed that they could assist us to host a panel discussion at the next African Commission session in November 2016 in order to reach a broader audience. We also made contact with one of the Commissioner’s working with the Working Group on Extractive Industries, who is interested in participating – through the working group – in the work of the binding treaty. The participants at the side event also suggested that this conversation be opened at the African Union Summit.